REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E041 OF 2024
DICKSON MUDAKI MWANZI……………….……..…………………..APPELLANT VERSUS REPUBLIC……………………….……………..…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon M Ochieng (PM) delivered at Hamisi in the Principal Magistrate’s Court in Sexual Offence Case No 46 of 2020 on 6 th April 2023)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon M. Ochieng (PM), convicted him of the main charge and sentenced him to life imprisonment.
3. Being dissatisfied with the said Judgement, he lodged the appeal herein. His Petition of Appeal was dated 29th November 2024. He set out four (4) grounds of appeal. On 1st August 2025, he filed Amended Grounds of Appeal dated 18th July 2025. He listed five (5) Amended Grounds of Appeal.
4. His Written Submissions were dated 18th July 2025 and filed on 1st August 2025, while those of the Respondent were dated 3rd September 2025 and filed on 5th September 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal and Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt;
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF THE PROSECUTION’S CASE
9. Ground of Appeal Nos (1), (2), (3) and (4) in the Petition of Appeal and Ground of Appeal Nos (1), (2), (3), (4) and (5) of the Amended Grounds of Appeal were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant submitted that PW 2 stated that he was fourteen (14) years old. He stated that PW3 testified that the minor was born on 21st February 2008 as per the birth notification. He pointed out that the Birth Notification showed that PW 2 was born on 11th February 2005.
13. He asserted that it was necessary for the age to be assessed by a medical officer to ascertain the accuracy and credibility of the notification card. He averred that a medical officer was best placed to determine PW 2’s age compared to the Investigating Officer. He submitted that PW 3 ought to have testified how the victim was medically examined. He was emphatic that none of the witnesses could tell when PW 2 was born.
14. He placed reliance on the case of Eliud Ouma Agwara vs Republic (2015) eKLR Criminal Appeal No 16 of 2016, where the court held that sworn evidence alone or a P3 Form was not sufficient to prove age unless the producer of the same testified that he/she medically examined the complainant.
15. On its part, the Respondent submitted that the Charge Sheet indicated that PW 2 was eleven (11) years of age at the time of the commission of the offence. PW 3 produced a birth notification showing that PW 2 was born on 11th February 2008, meaning that he was eleven (11) years at the material time.
16. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR, where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school-leaving certificates, by the victim’s parents and/or guardians, observation, or common sense.
17. A perusal of the proceedings showed that Florence Adisa (hereinafter referred to as “PW 1”) testified that the Complainant (hereinafter referred to as “PW 2”) was his grandchild, and she lived with him. She identified the Birth Notification Card, which indicated his date of birth as 11th February 2008. PW 2 told the Trial Court that he was fourteen (14) years of age at the time that he testified.
18. No 82299 PC Fredrick Otieno (hereinafter referred to as “PW 3”) produced the Birth Notification Card showing PW 2’s date of birth as 21st February 2008.
19. Notably, the Trial Court relied on the said Birth Notification card. It indicated that PW 2 was born on 11th February 2008. PW 3’s testimony that PW 2 was born on 21st February 2008 was not supported by the documentary evidence that he relied upon. As the offence was committed on 23rd July 2019, PW 2 was eleven (11) years five (5) months old at the material time of the incident. His evidence that he was fourteen (14) years old was correct as he testified on 2nd November 2022.
20. As the Appellant did not adduce evidence to rebut and/or controvert the Prosecution’s evidence regarding PW 2’s age, this court found and held that PW 2 was a child for all purposes and intent.
B. IDENTIFICATION
21. The Appellant did not submit on the issue of identification. On its part, the Respondent submitted that there could not have been a mistake as to the Appellant’s identity. It asserted that PW 2 identified the Appellant as a neighbour. It explained that both the Appellant and PW 2 were well known to each other and that on the material evening, PW 2 was on his way home from school when the Appellant lured him by giving him money to go buy cigarettes. It opined that PW2 did not reject his request to go buy the cigarettes because the Appellant was well known to him.
22. It was emphatic that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 .
23. PW 1 told the Trial Court that PW 2 knocked on her door at about 12.40 am and informed her that one Masege, whom she identified as the Appellant herein, was the person who defiled him in the bushes. She stated that PW 2 was holding his innerwear, and it was muddy. When she was cross-examined, she stated that PW 2 identified the Appellant as his perpetrator at the Police Station.
24. PW 2 testified that on 23rd July 2019, he met the Appellant as he was coming from school, and he gave him Kshs 50/= to buy cigarettes. He maintained that he knew the Appellant well as a neighbour and that he used to see him going to the river. The Appellant opted to remain silent when he was put on his defence.
25. In the absence of any evidence from the Appellant, it was evident that the Appellant was PW 2’s neighbour. He and PW 2 knew each other. Identification was therefore by way of recognition. The only question that remained was whether he defiled PW2.
C. PENETRATION
26. The Appellant invoked Section 2 of the Sexual Offences Act. He stated that penetration was in doubt since PW 2 testified that he inserted his penis into his buttock. He stated that genital organs were classified as penis, anus, and vagina hence, buttocks are not a genital organ. He argued that since penetration occurred in the PW 2’s buttocks and not anus, and the fact that there was a contradiction between PW 2 and the other witnesses, conviction could not suffice.
27. He placed reliance on the cases of Ndungu Kimanyi vs Rep (1979) KLR and Ramkrishna Denkerrai Panday vs 1957 EACA 102 (sic), where the common holding was that there should be no inconsistencies, contradictions, or material discrepancies in the evidence that was adduced and that a witness was required not to raise suspicion or credibility of the witness.
28. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR, where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony, which was usually corroborated by the medical report presented by the medical officer.
29. It asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offence as was held in the case of S.O.O vs Republic[2018]eKLR, which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another vs The Republic Criminal App No 92 of 2007.
30. It submitted that PW 2’s evidence was corroborated by that of PW 4, who testified that he examined PW 2 and found that his anal ring was torn and also gaping with fecal incontinence. He produced Treatment notes, the PRC Form, and the P3 Form as his evidence and concluded that PW 2 was sodomised.
31. According to PW 2, the Appellant took him to the river and told him to remove his school shirt. He said that the Appellant covered his eyes with the shirt and took him to a house he could not see. He told the Trial Court that he told him that he wanted to go home, but the Appellant ordered him to keep quiet. He said that the Appellant then took him to a tea plantation where he uncovered his eyes.
32. He testified that the Appellant asked him to remove his school and sports shorts and did “tabia mbaya.” He said that the Appellant inserted his penis in his buttocks and that when he finished, he gave him the shorts and threw a panga at him, hitting his legs. He averred that he ran home and told PW 1 what had transpired, after which they reported to the village elders.
33. His further evidence was that PW 1 took him to the hospital the following day. He added that they visited the scene with the village elders the following day and found the newspaper the Appellant had used to wipe himself. PW 1 reiterated PW 2’s evidence to the extent of what he reported to him.
34. Evans Karega (hereinafter referred to as “PW 4”), a Clinical Officer, stated that on 24th July 2019, PW 2 was brought to the hospital with history of sodomy. He stated that he examined him and noted swelling on the head on the right side, dried blood on the thigh, and scratches on the left thigh. Torn and gaping anus ring with fecal incontinence. He confirmed that PW 2 was sodomised.
35. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).”
36. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person, as it would be one person’s word against another’s.
37. For contradictions to be material so as to weaken the prosecution’s case, they had to be so grave as to lead to a conclusion that the witness was not truthful and create doubt as to the guilt of the Appellant. This court looked at the Treatment notes, PRC Form, and P3 Form that PW 3 adduced in evidence and noted that they all alluded to sodomisation of PW 2. This court did not find contradictions that weakened the Prosecution’s case. The witnesses were consistent on the sodomisation of PW 2. Any inconsistencies and contradictions, if at all, that the Appellant had raised were minor and insignificant.
38. Having evaluated the evidence before the trial Court, it was the view of this court that the evidence before the Trial Court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases was proof beyond reasonable doubt. Penetration in this case was proved through PW 2’s testimony, which was corroborated by PW 4’s scientific evidence and the documents that he produced in court.
39. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3), (4) and (5) were not merited, and the same be and are hereby dismissed.
IV. SENTENCE
40. The Appellant did not raise the issue of his sentence in his Grounds of Appeal or Amended Grounds of Appeal. He, however, submitted that the Trial Court erred in handing him a harsh and excessive sentence. He cited the case of Silas Maliolo Zakayo and James Masinde Wafula and 5 Others. HCCR Pet No 602 Of 2024 Vihiga vs Republic , (eKLR citation not given) where this very court held that the death and life sentences were inconsistent with Article 28 of the Constitution as they disenfranchised the petitioner's dignity. He urged this court to substitute the life sentence to a lesser one and consider the period spent in custody.
41. He also cited the case of Hadson Ali Mwanchongo vs Republic (2016) eKLR, where the court observed that a victim would be days or months above the prescribed age, and hence if the prescribed age had passed, the perpetrator ought to benefit from the least severe sentence.
42. On its part, the Respondent submitted that the Trial Court considered his mitigation and proceeded to sentence him to life as the law provides hence, the sentence was safe and proper.
43. The Appellant herein was sentenced under Section 8(2) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: -
“A person who commits an offence of defilement with a child between the age of eleven years or less shall upon conviction be sentenced to imprisonment for life”
44. As PW 2 had not attained the age of twelve (12) years for the offence to have fallen under Section 8(4) of the Sexual Offences Act, this court could not therefore fault the Trial Court for having sentenced him to life imprisonment, as that was lawful.
45. In a decision that was delivered on 12th July 2024 in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , t he Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR in which the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it had held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.
46. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercise of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed.
47. It could not also consider the time which the Appellant had spent in custody during trial pursuant to section 333(2) of the Criminal Procedure Code since his sentence was indeterminate.
DISPOSITION
48. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 29 th November 2024 and Amended Grounds of Appeal dated 18 th July 2025 and filed on 1 st August 2025 were not merited and the same be and are hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E041 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E041 OF 2024
DICKSON MUDAKI MWANZI……………….……..…………………..APPELLANT VERSUS REPUBLIC……………………….……………..…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon M Ochieng (PM) delivered at Hamisi in the Principal Magistrate’s Court in Sexual Offence Case No 46 of 2020 on 6 th April 2023)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon M. Ochieng (PM), convicted him of the main charge and sentenced him to life imprisonment.
3. Being dissatisfied with the said Judgement, he lodged the appeal herein. His Petition of Appeal was dated 29th November 2024. He set out four (4) grounds of appeal. On 1st August 2025, he filed Amended Grounds of Appeal dated 18th July 2025. He listed five (5) Amended Grounds of Appeal.
4. His Written Submissions were dated 18th July 2025 and filed on 1st August 2025, while those of the Respondent were dated 3rd September 2025 and filed on 5th September 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal and Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt;
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF THE PROSECUTION’S CASE
9. Ground of Appeal Nos (1), (2), (3) and (4) in the Petition of Appeal and Ground of Appeal Nos (1), (2), (3), (4) and (5) of the Amended Grounds of Appeal were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant submitted that PW 2 stated that he was fourteen (14) years old. He stated that PW3 testified that the minor was born on 21st February 2008 as per the birth notification. He pointed out that the Birth Notification showed that PW 2 was born on 11th February 2005.
13. He asserted that it was necessary for the age to be assessed by a medical officer to ascertain the accuracy and credibility of the notification card. He averred that a medical officer was best placed to determine PW 2’s age compared to the Investigating Officer. He submitted that PW 3 ought to have testified how the victim was medically examined. He was emphatic that none of the witnesses could tell when PW 2 was born.
14. He placed reliance on the case of Eliud Ouma Agwara vs Republic (2015) eKLR Criminal Appeal No 16 of 2016, where the court held that sworn evidence alone or a P3 Form was not sufficient to prove age unless the producer of the same testified that he/she medically examined the complainant.
15. On its part, the Respondent submitted that the Charge Sheet indicated that PW 2 was eleven (11) years of age at the time of the commission of the offence. PW 3 produced a birth notification showing that PW 2 was born on 11th February 2008, meaning that he was eleven (11) years at the material time.
16. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR, where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school-leaving certificates, by the victim’s parents and/or guardians, observation, or common sense.
17. A perusal of the proceedings showed that Florence Adisa (hereinafter referred to as “PW 1”) testified that the Complainant (hereinafter referred to as “PW 2”) was his grandchild, and she lived with him. She identified the Birth Notification Card, which indicated his date of birth as 11th February 2008. PW 2 told the Trial Court that he was fourteen (14) years of age at the time that he testified.
18. No 82299 PC Fredrick Otieno (hereinafter referred to as “PW 3”) produced the Birth Notification Card showing PW 2’s date of birth as 21st February 2008.
19. Notably, the Trial Court relied on the said Birth Notification card. It indicated that PW 2 was born on 11th February 2008. PW 3’s testimony that PW 2 was born on 21st February 2008 was not supported by the documentary evidence that he relied upon. As the offence was committed on 23rd July 2019, PW 2 was eleven (11) years five (5) months old at the material time of the incident. His evidence that he was fourteen (14) years old was correct as he testified on 2nd November 2022.
20. As the Appellant did not adduce evidence to rebut and/or controvert the Prosecution’s evidence regarding PW 2’s age, this court found and held that PW 2 was a child for all purposes and intent.
B. IDENTIFICATION
21. The Appellant did not submit on the issue of identification. On its part, the Respondent submitted that there could not have been a mistake as to the Appellant’s identity. It asserted that PW 2 identified the Appellant as a neighbour. It explained that both the Appellant and PW 2 were well known to each other and that on the material evening, PW 2 was on his way home from school when the Appellant lured him by giving him money to go buy cigarettes. It opined that PW2 did not reject his request to go buy the cigarettes because the Appellant was well known to him.
22. It was emphatic that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 .
23. PW 1 told the Trial Court that PW 2 knocked on her door at about 12.40 am and informed her that one Masege, whom she identified as the Appellant herein, was the person who defiled him in the bushes. She stated that PW 2 was holding his innerwear, and it was muddy. When she was cross-examined, she stated that PW 2 identified the Appellant as his perpetrator at the Police Station.
24. PW 2 testified that on 23rd July 2019, he met the Appellant as he was coming from school, and he gave him Kshs 50/= to buy cigarettes. He maintained that he knew the Appellant well as a neighbour and that he used to see him going to the river. The Appellant opted to remain silent when he was put on his defence.
25. In the absence of any evidence from the Appellant, it was evident that the Appellant was PW 2’s neighbour. He and PW 2 knew each other. Identification was therefore by way of recognition. The only question that remained was whether he defiled PW2.
C. PENETRATION
26. The Appellant invoked Section 2 of the Sexual Offences Act. He stated that penetration was in doubt since PW 2 testified that he inserted his penis into his buttock. He stated that genital organs were classified as penis, anus, and vagina hence, buttocks are not a genital organ. He argued that since penetration occurred in the PW 2’s buttocks and not anus, and the fact that there was a contradiction between PW 2 and the other witnesses, conviction could not suffice.
27. He placed reliance on the cases of Ndungu Kimanyi vs Rep (1979) KLR and Ramkrishna Denkerrai Panday vs 1957 EACA 102 (sic), where the common holding was that there should be no inconsistencies, contradictions, or material discrepancies in the evidence that was adduced and that a witness was required not to raise suspicion or credibility of the witness.
28. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR, where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony, which was usually corroborated by the medical report presented by the medical officer.
29. It asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offence as was held in the case of S.O.O vs Republic[2018]eKLR, which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another vs The Republic Criminal App No 92 of 2007.
30. It submitted that PW 2’s evidence was corroborated by that of PW 4, who testified that he examined PW 2 and found that his anal ring was torn and also gaping with fecal incontinence. He produced Treatment notes, the PRC Form, and the P3 Form as his evidence and concluded that PW 2 was sodomised.
31. According to PW 2, the Appellant took him to the river and told him to remove his school shirt. He said that the Appellant covered his eyes with the shirt and took him to a house he could not see. He told the Trial Court that he told him that he wanted to go home, but the Appellant ordered him to keep quiet. He said that the Appellant then took him to a tea plantation where he uncovered his eyes.
32. He testified that the Appellant asked him to remove his school and sports shorts and did “tabia mbaya.” He said that the Appellant inserted his penis in his buttocks and that when he finished, he gave him the shorts and threw a panga at him, hitting his legs. He averred that he ran home and told PW 1 what had transpired, after which they reported to the village elders.
33. His further evidence was that PW 1 took him to the hospital the following day. He added that they visited the scene with the village elders the following day and found the newspaper the Appellant had used to wipe himself. PW 1 reiterated PW 2’s evidence to the extent of what he reported to him.
34. Evans Karega (hereinafter referred to as “PW 4”), a Clinical Officer, stated that on 24th July 2019, PW 2 was brought to the hospital with history of sodomy. He stated that he examined him and noted swelling on the head on the right side, dried blood on the thigh, and scratches on the left thigh. Torn and gaping anus ring with fecal incontinence. He confirmed that PW 2 was sodomised.
35. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).”
36. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person, as it would be one person’s word against another’s.
37. For contradictions to be material so as to weaken the prosecution’s case, they had to be so grave as to lead to a conclusion that the witness was not truthful and create doubt as to the guilt of the Appellant. This court looked at the Treatment notes, PRC Form, and P3 Form that PW 3 adduced in evidence and noted that they all alluded to sodomisation of PW 2. This court did not find contradictions that weakened the Prosecution’s case. The witnesses were consistent on the sodomisation of PW 2. Any inconsistencies and contradictions, if at all, that the Appellant had raised were minor and insignificant.
38. Having evaluated the evidence before the trial Court, it was the view of this court that the evidence before the Trial Court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases was proof beyond reasonable doubt. Penetration in this case was proved through PW 2’s testimony, which was corroborated by PW 4’s scientific evidence and the documents that he produced in court.
39. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3), (4) and (5) were not merited, and the same be and are hereby dismissed.
IV. SENTENCE
40. The Appellant did not raise the issue of his sentence in his Grounds of Appeal or Amended Grounds of Appeal. He, however, submitted that the Trial Court erred in handing him a harsh and excessive sentence. He cited the case of Silas Maliolo Zakayo and James Masinde Wafula and 5 Others. HCCR Pet No 602 Of 2024 Vihiga vs Republic , (eKLR citation not given) where this very court held that the death and life sentences were inconsistent with Article 28 of the Constitution as they disenfranchised the petitioner's dignity. He urged this court to substitute the life sentence to a lesser one and consider the period spent in custody.
41. He also cited the case of Hadson Ali Mwanchongo vs Republic (2016) eKLR, where the court observed that a victim would be days or months above the prescribed age, and hence if the prescribed age had passed, the perpetrator ought to benefit from the least severe sentence.
42. On its part, the Respondent submitted that the Trial Court considered his mitigation and proceeded to sentence him to life as the law provides hence, the sentence was safe and proper.
43. The Appellant herein was sentenced under Section 8(2) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: -
“A person who commits an offence of defilement with a child between the age of eleven years or less shall upon conviction be sentenced to imprisonment for life”
44. As PW 2 had not attained the age of twelve (12) years for the offence to have fallen under Section 8(4) of the Sexual Offences Act, this court could not therefore fault the Trial Court for having sentenced him to life imprisonment, as that was lawful.
45. In a decision that was delivered on 12th July 2024 in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , t he Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR in which the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it had held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.
46. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercise of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed.
47. It could not also consider the time which the Appellant had spent in custody during trial pursuant to section 333(2) of the Criminal Procedure Code since his sentence was indeterminate.
DISPOSITION
48. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 29 th November 2024 and Amended Grounds of Appeal dated 18 th July 2025 and filed on 1 st August 2025 were not merited and the same be and are hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E041 OF 20242